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  1. #1
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    Default Being sued for copyright infringement

    I have a somewhat complex and very serious situation on my hands.

    During the summer of 2005 I purchased OEM software that was presented to me, which I have documentation to prove, as legitmate and authentic. From June until November I sold this software on ebay. In early November I received a cease and desist letter from Microsoft informing me that the software that I was selling was illegal. This was the first I heard of or knew that the software was not authentic. I immediately stopped selling the software on ebay, or anywhere else for that matter, and have not sold or advertised it since the receipt of this letter.

    Now...5 months later, I have received a summons in a civil action charging me with 7 counts ranging from copyright infringement to trademark infringement and unfair competition. The complaint alleges that I am still engaging in the illegal activity and I can guarantee that I am definitely not. When I got the letter I immediately stopped any dealings that I had in this software.

    I guess I don't even know where to begin in this situation. Is it likely that they just want the names of the suppliers from which I purchased the software? Should I call the woman in the compliance department I first spoke with? I'm just very confused why I am being sued after I stopped selling the products once I received the Cease and Desist letter.

    Does anyone have any advice??

    Thanks

  2. #2
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    Default Microsoft Copyright Infringement

    Microsoft usually brings these suits en masse - that is, the law firm is probably suing five, ten, twenty... people in your jurisdiction. They are probably inclined toward settlement, and you may well be able to negotiate something in the vicinity of 1/4 - 1/3 of what they are demanding. (If you can help them get evidence against others, all's the better.)

    Microsoft is likely to be skeptical of your claims that you did not know that the material was pirated. They know that most people who sell pirated software know exactly what they are doing.

    In these lawsuits, they tend to get their facts straight. If they claim they had somebody make a purchase after you received the "cease and desist" letter, they can typically back up that accusation with the purchased product, receipts, etc.

    If you have business insurance, you may be able to get representation through your insurance, although they will probably reserve their rights to deny coverage if they find that you acted intentionally.

  3. #3
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    Default

    Thank you for the response.

    The summons didn't say anything about the cease and desist letter or that they bought any software after the letter was sent. All it says is that I was in violation of the law and I continue to be in violation of the law. I know that someone from Microsoft did buy some software from me on ebay and that is why I was made aware that they were illegal in the first place. I immediately stopped selling the software on ebay and every other website I had listed on.

    After doing a search on google I discovered that a listing I posted before the cease and desist was still turning up on iOffer.com. I did not remove the listing because I did not remember it was there but I also did not make any sales through this site. The post clearly states that it was listed prior to the date of the C&D letter.

    I just find it sort of weird that they sent me the letter, I complied, and then they sued me five months later.

    It says that the summons must be answered within 20 days, does this mean that I need to get an attorney to look at this information immediately or can I answer the complaint myself?

  4. #4
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    Default Answering a Complaint

    You can answer the complaint yourself, although a lawyer can help you make sure that it is in proper form. If you miss the deadline for filing an answer, you should assume that a default will be entered against you (so don't miss it).

  5. #5
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    Default

    Thanks again. I am waiting for a call back from an attorney I have dealt with before.

    Does the other party have to provide evidence to back up the claims in their complaint? For example, they state that I am continuing to violate their rights by selling the software but like I said I have not sold anything since before I received the cease and desist letter back in November. It is just difficult to try and determine what they are looking for when I don't know why they are making the claims that they are making.

    I have put a call into Microsoft's attorney but I have not heard back yet. I am not expecting a pleasant conversation....

  6. #6
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    Quote Quoting BeingSued
    I have put a call into Microsoft's attorney but I have not heard back yet. I am not expecting a pleasant conversation....
    You may be surprised. An acquaintance of mine who was sued by Microsoft happened to have a very friendly attorney working the case for Microsoft. It's not at all that she was a pushover; but it is fair to say that all exchanges were professional and cordial.

  7. #7
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    Default

    I spoke with the attorney that Microsoft has hired. He basically gave me two options: Have an attorney draft a response to their complaint and proceed to litigation or hire and attorney and enter into settlement discussions. I'm thinking that the better choice woudl be to go to settlement discussions.

    I'm hoping that since their attorney has admitted to me that they have no evidence that I have violated any of their laws or policies after they put me on notice with the cease and desist letter that settlement will be the better option. All of the cases that I found involved parties that continued to violate the laws after Microsoft had sent them multiple C&D letters. Hopefully they are more interested in me giving them names of suppliers that I dealt with, who by the way provided me with documentation that what I was purchasing was authentic and dropshipped from authroized Microsoft resellers. It was not until I was contacted by Microsoft that I knew they were not real. Hopefully giving them information about people that are higher up on the chain than me will be seen as a good thing.

    What recourse do I have against the people that I purchased the software from? All of the software was purchased on a credit card, I'm wondering if that will maybe provide me with some protection.

    The attorney was very professional and cordial. Not that I was expecting anything less but I was expecting to be made to feel like a hardened criminal with no hope...

  8. #8
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    Default

    Quote Quoting BeingSued
    What recourse do I have against the people that I purchased the software from? All of the software was purchased on a credit card, I'm wondering if that will maybe provide me with some protection.
    Are they located in your state? (In the U.S.?) You can sue them, or file a cross-claim against them as part of the present lawsuit - and may wish to discuss those possibilities with your lawyer depending upon how you decide to proceed. Presumably this case is filed in federal court, so you may be able to reach them even if they are in another state, but jurisdictional issues (as well as interstate litigation) can be tricky.

  9. #9
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    Default

    I purchased the software from a company located in New York state. I am not sure if the case was filed in state or federal court and I do not have the complaint with me right now. I think it was "Massachusetts District Court" which is federal I believe?? I will definitely speak with my attorney about that. I am waiting for an appointment and can hopefully get a meeting on Thursday. I am just trying to figure out as much as possible now as well. Trying to calm my nerves.

    So if I decide to settle, do I then have to go after them in a separte suit or are settlement proceedings still part of the offical filed lawsuit?

  10. #10
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    Default

    You can decide with the lawyer whether to settle with Microsoft then to try to go after the other company in separate proceedings, or to bring them into the current Microsoft litigation. There are advantages and disadvantages to each approach. One of the disadvantages of bringing them into the current litigation is that it could complicate settlement with Microsoft. On the other hand, if you are in federal court on federal issues, you may be able to keep venue in your state, whereas if you don't you may end up with only state court issues, having to litigate in New York, or both. (So it really is something to decide with the assistance of a lawyer fully conversant with the case.)

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